Appeals Court Overturns Prenda Win From Former RIAA Lobbyist Judge

from the good-to-see dept

As we've been covering the Prenda debacle for years, there was still the one big "victory" it had, in which a DC district court judge ruled that randomly lumping together over a thousand unrelated "Does" was perfectly legitimate, something most other courts had found to be inappropriate. Of course, people quickly figured out that the judge who found in favor of this bizarre joinder ruling, had only recently been appointed to the bench, having previously been an RIAA lobbyist, and who, years earlier, had helped write the DMCA as a Congressional staffer.

That case made its way slowly through the appeals process, and earlier today, the DC Circuit appeals court overturned the ruling, highlighting a bunch of Prenda's bad behavior, but (perhaps more importantly) pointing out that the subpoenas for information on these 1,000+ Does was clearly inappropriate, first because almost none of the Does appeared to live in Washington DC, and thus were outside the court's jurisdiction. Prenda/AF Holdings complete failure to do anything even remotely close to figuring out if people might be located in DC was pretty damning here:

Federal Rules of Civil Procedure 45 and
26 set forth the relevant considerations. Rule 45(d)(3)(A)
requires a district court to “quash or modify a subpoena that
. . . subjects a person to undue burden.” If a subpoena compels
disclosure of information that is not properly discoverable,
then the burden it imposes, however slight, is necessarily
undue: why require a party to produce information the
requesting party has no right to obtain?

And, here, the court certainly finds the discovery attempts to be "undue," because AF Holdings/Prenda could show no good faith belief that they were going after information relevant to a lawsuit in that court.

Here, we think it quite obvious that AF Holdings could
not possibly have had a good faith belief that it could
successfully sue the overwhelming majority of the 1,058 John
Doe defendants in this district. AF Holdings concedes that
under the District of Columbia’s long-arm statute, which
along with the Due Process Clause governs this question... the only conceivable way that
personal jurisdiction might properly be exercised over these
Doe defendants is if they are residents of the District of
Columbia or at least downloaded the copyrighted work in the
District.... But AF Holdings
has made absolutely no effort to limit its suit or its discovery
efforts to those defendants who might live or have
downloaded Popular Demand in the District of Columbia.
Instead, it sought to subpoena Internet service providers that
provide no service at all in the District. As Duffy reluctantly
conceded at oral argument, AF Holdings could have no
legitimate reason for objecting to the court’s quashing the
subpoenas directed at these providers.... Even for those providers that do serve the District of
Columbia, AF Holdings’s discovery demands were overbroad
because it made no attempt to limit its inquiry to those
subscribers who might actually be located in the District. It
could have easily done so using what are known as
geolocation services, which enable anyone to estimate the
location of Internet users based on their IP addresses. Such
services cost very little or are even free.

The court notes that Prenda's failure to do even the most basic things to limit discovery raises questions about its motives:

Given AF Holdings’s
failure to take even these minimal steps, we cannot escape the
conclusion that it sought the vast majority of this information
for reasons unrelated to its pursuit of this particular lawsuit.... . Indeed, Duffy essentially admitted as much at
oral argument, stating that if, as appears to be the case, 399 of
Comcast’s 400 identified subscribers were found to live
outside the District, “the 399 likely wouldn’t be named as
defendants in this case.”

The court then checks in on the big question of "joinder" -- and whether or not it's appropriate to lump together over 1,000 totally unrelated individuals in one of these copyright trolling lawsuits. Like most courts to date, but unlike Judge Howell, the appeals court sees how problematic this is.

We are unconvinced. For purposes of this case, we may
assume that two individuals who participate in the same
swarm at the same time are part of the same series of
transactions within the meaning of Rule 20(a)(2). In that
circumstance, the individuals might well be actively sharing a
file with one another, uploading and downloading pieces of
the copyrighted work from the other members of the swarm.

But AF Holdings has provided no reason to think that the
Doe defendants it named in this lawsuit were ever
participating in the same swarm at the same time. Instead, it
has simply set forth snapshots of a precise moment in which
each of these 1,058 Does allegedly shared the copyrighted
work—snapshots that span a period of nearly five months.
Two individuals who downloaded the same file five months
apart are exceedingly unlikely to have had any interaction
with one another whatsoever. Their only relationship is that
they used the same protocol to access the same work. To
paraphrase an analogy offered by amicus counsel at oral
argument, two BitTorrent users who download the same file
months apart are like two individuals who play at the same
blackjack table at different times. They may have won the
same amount of money, employed the same strategy, and
perhaps even played with the same dealer, but they have still
engaged in entirely separate transactions.... We therefore agree with
those district courts that have concluded that the mere fact
that two defendants accessed the same file through BitTorrent
provides an insufficient basis for joinder.

It's nice to see that the court picked up on many of the amicus arguments made by EFF, ACLU, Public Knowledge and Public Citizen.

Oh, and, in case you're wondering about all the other stuff, such as the Alan Cooper forgery, the court notes those allegations, while saying they are unrelated to the issues here, but, at the very end, in sending the case back to the district court, tosses this in:

Accordingly, we vacate the district court’s order and
remand for further proceedings consistent with this opinion.
We leave it to the district court to determine what sanctions, if
any, are warranted for AF Holdings’s use of a possible
forgery in support of its claim.

Michael Tiemann, Vice President of Open Source Affairs at Red Hat Inc, recently shot a video set to music published under the CC-BY-NC Creative Commons license which, when he uploaded it to Youtube, got hit with multiple Content-ID takedowns. His experience demonstrates how Youtube's system has stacked the deck against independent creators. When even a VP of an S&P 500 company can't tame the beast, the little guys have no chance at all."

Re: Scare quotes FTW

Re: Re: Scare quotes FTW

The district court rejected these arguments, holding that“considerations of personal jurisdiction and joinder arepremature when discovery is sought before the plaintiff hasnamed a defendant and the discovery is targeted to identifyunknown individuals associated with the IP addresses.” Butacknowledging that several other district courts had reachedcontrary conclusions in similar situations, and recognizingthat a substantial ground for difference of opinion existed, thedistrict court certified its order for immediate appeal. See 28U.S.C. § 1292(b).

It looks like the judge was perfectly aware of being in conflict with other decisions at the same level she did not agree with and was prepared to let her work be checked by a higher level (at the cost of plaintiffs, defendants, and subpoenaed parties). To put "judge" in quote marks, she would have needed to go out of her way not to let her work get rechecked.

She was rather fresh on the job and would have liked to see herself establish some case law she considered nice while leaving the door wide open to have her approach sacked.

That's an "I might be wrong but" approach that is not quite fitting to count as a stooge or an idiot.

One will have to see how far she is able or willing to let the RIAA taint be washed out of her brain in future decisions.

Re: Scare quotes FTW

it was obvious at the time that Judge Howell was as bias as you could get. however, you need to look further than just the way she behaved in this case. she was recommended for the post by other members of the Judiciary and to me it shows how deliberate her appointment was, ie, to be completely on the side of the entertainment industries and to try to get as many copyright infringement cases assigned to her court as possible. thank goodness the appeals court reversed her loaded decision! let's hope that she either gets removed from office completely, never gets to sit and rule on any cases involving copyright, even in the slightest way, or gets severely reprimanded over her behavior! there is enough bias on the part of the entertainment industries anyway, because they refuse to do anything to please customers preferring to get them locked up and/or bankrupted, without her or any other judge being given loaded cases to rule on.

Re:

There is this thing called recusal...I remember a Judge who had a stock portfolio that included a company with a name similar to one who would appear before her but unrelated. She recused herself to avoid ANY appearance of impropriety.Judge Howell took no such considerations, backed Pretenda, and now I hope it bites her in the ass.

Remember campers she sat on the bench and claimed that EVERYONE needed to do more to protect copyrights, despite there being nothing in the law supporting that position. One wonders how a lobbyist could EVER be impartial in a copyright case of any variety, she was paid to advocate a certain position and not look at the whole picture. Her disregard of basic legal principles deserve a 2nd look. Even as letters came to her court from does in jurisdictions well outside of her purview she refused to consider the implications of allowing the case to move forward involving citizens she had no jurisdiction over.

Re: Re:

Remember campers she sat on the bench and claimed that EVERYONE needed to do more to protect copyrights, despite there being nothing in the law supporting that position.

What bothers me most about this whole thing is that Judge Thomas Penfield Jackson, presiding judge over the United States vs Microsoft Corp., got into hot water for statements he made while hearing the case (though the comments were not printed until after the case was over,) in which he found Microsoft guilty of abusing their Monopoly position. The Appellate court argued that he should have recused himself from the case since he was not impartial. He did not make those comments before the case, and from statements he made, he pretty much determined that Microsoft was bad during the case, based on their own actions, before it was completed, and made those comments to reporters at that time.

Here, we obviously have a jurist that *is* biased before the case, and the Appellate didn't make any comments about this and why the jurist should have recused themselves because of the bias. High-court vs. low-court? I don't think it really is this, but instead just differences on opinion over two similar cases.

I'm pretty sure that Prenda considered this case a loss at the first objection.

The DC circus just a rear-guard action. Losing the appeal rather than winning it is a loss solely because now Duffy will have to prepare for and attend another hearing.

Their business model wasn't to win cases. It wasn't even to start litigation and settle. It was to never be in court at all. They only needed to use the power of the court for discovery and to threaten potential victims. They needed discovery to get the names and addresses of targets. They then used the threat of ruinous legal expense -- not punishment for wrong-doing -- to extort money.

Ideally this would take only a single filing fee, with no document ever needing to be reviewed by a judge.

Re:

which is why when the suggestion of a "small claims" style courts for copyrights was met with much concern.

The ever popular victorian mindset about pornography makes even those who are truly innocent of anything consider settling to avoid the 'what will the neighbors think' effect.

There are many other models out there right now, trolling for "small" amounts without ever involving the courts at all. DMCA notices with attached settlement agreements forwarded onto account holders... and some people who fear the $150K hammer slamming into them or a long protracted fight where they might not get their costs repaid if they win... yeah the odds are they will pay the "small" amount to make it go away. Of course the small amount always gets bigger once they get a live one... and they are caught in the catch 22 of but if you weren't guilty why did you offer to settle? Suddenly they discover you need to settle for much more...

The system is ripe for and filled with abuse, one only hopes that Pretenda in its death throws will poison the well enough to start closing off these avenues or somehow spark needed copyright law reform.